35:0844(92)CA - - Air Force, Scott AFB, IL and NAGE Local R7-23, SEIU - - 1990 FLRAdec CA - - v35 p844

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35:0844(92)CA
The decision of the Authority follows:


35 FLRA No. 92

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

SCOTT AIR FORCE BASE, ILLINOIS

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R7-23, SEIU, AFL-CIO

(Charging Party/Union)

5-CA-60307

DECISION AND ORDER

April 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached Decision of the Administrative Law Judge. The Respondent filed an opposition to the exceptions.

The case concerns the nature of the obligation to bargain in connection with a reduction-in-force (RIF). After the Respondent decided to contract out several bargaining unit positions and conduct a RIF, it issued specific RIF notices to unit employees. The notices informed employees whether they would lose their jobs, be downgraded, or reassigned and whether there were other options available to them. The Union had requested to bargain with the Respondent over the impact and implementation of the RIF before the Respondent issued the notices, but the Respondent expressed its willingness to engage in direct bargaining only after it issued the specific RIF notices.

The unfair labor practice complaint alleged that the Respondent's failure to bargain before issuance of the notices violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

For the reasons set forth below, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute when it issued RIF notices to bargaining unit employees without first having satisfied its obligation to bargain with the Union over the procedures for implementing the RIF and appropriate arrangements for employees affected by the RIF.

II. Facts

The Union is the exclusive representative of a base-wide unit at Scott Air Force Base, Illinois. In August or September 1985, the Respondent notified the Union that a study was to be conducted to determine if the commissary's custodial and night shelf-stocker functions should be contracted out. At that time, unit employees performed those functions.

In September and October 1985, the Union asked the Respondent for information about the possible contracting out and requested to negotiate over the impact and implementation of any decision by the Respondent to contract out. One of the Union's requests was that the Respondent maintain the status quo until the completion of negotiations. The Union also stated that it would "advise [the Respondent] as to any proposals once we are notified [as] to what management intends to do in this matter and once the impact has been made known." General Counsel's Exhibit 3.

There is no evidence in the record that the parties had any contact between October 1985 and January 1986 concerning the proposed contracting out. By letter dated January 22, 1986, the Union again requested to negotiate over the impact and implementation of the proposed contracting out and requested that the status quo be maintained throughout negotiations. The Union requested additional data and submitted the following proposals:

a. That employees who are downgraded or separated be given permanent mandatory placement rights into appropriate jobs as vacancies occur in accordance with seniority until each person attains his/her grade back.

b. That waivers be given where authorized by law on qualifying experience.

c. That break rooms and other conditions/facilities currently enjoyed by the bargaining unit not be impacted by contractor personnel.

d. That impacted employees who are scheduled for separation be given the right of first refusal to any contracted jobs.

e. That the union be notified on any and all payments to the contractor along with a detailed explanation of the payments.

f. That the Union be notified immediately whenever any civil servant is asked to do any work for which the contractor has been tasked.

g. That the union be notified of any proposed or actual increase in the contract price.

h. That a freeze be placed on appropriate fill actions from the outside and appropriate permanent fill actions.

General Counsel's Exhibit 5. The Union also stated that additional proposals may be forthcoming depending on the information provided by the Respondent. Id.

On January 30, 1986, the Respondent: (1) provided certain requested information; (2) advised the Union that it was seeking Congressional approval to contract out; (3) acknowledged the Union's request to maintain the status quo and to negotiate over the impact and implementation of a decision to contract out; and (4) stated that it would keep the Union advised.

On May 9, 1986, the Union again asked the Respondent about the status of the contracting out "and any anticipated impact relative to placement of employees, if you are going to implement. . . . We will provide any impact and implementation type proposals as soon as practical after the above information is provided. Again, we request to negotiate and that the status quo be maintained throughout negotiations." General Counsel's Exhibit 7.

On May 22, 1986, the Respondent advised the Union that the proposed contracting out had been approved and that it expected implementation to occur no earlier than August 1986. The Respondent stated that it was verifying information on the retention registers and would advise the Union within 2 weeks of any impact on employees. The Respondent also inquired if the proposals made by the Union in January concerning the impact and implementation of any RIF resulting from the decision to contract out were still valid.

On May 30, 1986, the Respondent notified the Union that the contractor would be in place by July 1, 1986, and that the effective date of the RIF would be August 17, 1986. The Respondent also provided the Union with a list of the positions and the specific employees affected by the RIF. The Respondent stated that as a result of the RIF, there would be 2 proposed separations, 6 proposed changes to lower grade, and 12 proposed reassignments. The Respondent stated that the two employees "that are proposed separations will receive applications for employment with the contractor." General Counsel's Exhibit 9. The Respondent requested that any impact and implementation proposals be submitted by June 13, 1986.

On June 2, 1986, the Union informed the Respondent that the proposals made in January were still valid and submitted the following additional proposals:

a. Employees be given 180 days official advance notice of the RIF instead of the usual 60 days.

b. Part-time employees who are permanent be assigned to vacant full time positions, if there are no available appropriate part-time positions after the full time people have been placed.

c. Employees scheduled for separation/down grade be provided maximum allowable relocation expenses and services.

d. Employees not be required to train contractor personnel.

e. Combine PT positions which are vacant, where possible, to accommodate full time employees.

f. If the contract doesn't work out and jobs are converted back to civil service, offer impacted employees their jobs back.

General Counsel's Exhibit 10. The Union also indicated that more proposals would be forthcoming and requested that the Respondent start negotiations "without further delay" and maintain the status quo throughout the negotiation process. Id. The Union stated that "[i]t is the [U]nion's position that RIF notices should not be handed out until after negotiations have been completed." Id.

On June 6, 1986, the Respondent notified the Union that RIF notices to the employees affected by the RIF would be issued that day. On that date, affected employees were issued notices, which were dated June 5, 1986. The RIF notices "advised each employee of the position proposed, the effective date, and advised each that if there were no response he, or she, would be separated. Each letter also provided a considerable amount of information about the RIF, the options available, and where to find additional information." Judge's Decision at 8.

At the time the RIF notices were issued, the parties had a bargaining meeting scheduled for June 10, 1986. However, after learning that the notices to employees had been issued on June 6, the Union declined to bargain unless the RIF notices were withdrawn. The Respondent did not withdraw the notices.

The specific RIF notices included offers to employees of reassignments to positions of the same or lower grade in lieu of separation. Because those offers were accepted by the affected employees, the proposed RIF actions were accomplished, with one exception, prior to the effective date of the RIF. Judge's Decision at 13. The RIF was completed in July and August 1986.

III. Judge's Decision

The Judge concluded that the Respondent's conduct did not violate section 7116(a)(1) and (5) of the Statute. The Judge noted that under the Statute, an agency must notify a union of proposed changes in conditions of employment and provide "ample opportunity" to negotiate impact and implementation matters before making the changes. Judge's Decision at 12.

However, the Judge found that the Respondent did not have a duty to bargain before issuance of the RIF notices to bargaining unit employees on June 6, 1986. The Judge stated that in U.S. Immigration and Naturalization Service, 24 FLRA 786 (1986) (INS), "the Authority again made clear that implementation means the date changes become effective, not the date of notice of the proposed change[.]" Judge's Decision at 15. The Judge concluded that "nothing occurred on June 6 except notice of future action." Id. at 13.

Rather, he found that the change in working conditions occurred when the changes specified in the RIF notices were implemented in July and August 1986.

The Judge found that: (1) in the past the parties had negotiated impact and implementation after issuance of RIF notices; (2) the Respondent informed the Union that it remained ready to negotiate over impact and implementation after June 6, 1986, and before the actions in the notices were to take effect; and (3) the Respondent informed the Union that it was willing to discuss all of the Union's proposals, including the Union's proposed extension of the RIF notices. Judge's Decision at 6 and 13. The Judge also found that the Respondent's conduct in issuing the notices was consistent with Article XIV of the parties' negotiated agreement, although he concluded that "the interpretation of Article XIV would not be determinative of the statutory violation alleged[.]" Id. at 16 n.6. Article XIV provides that certain information "must be provided the Union 5 days before the issuance of RIF notices." Id. Taking into account all of these circumstances, the Judge found that the Respondent did not violate the Statute by issuing the RIF notices prior to completion of bargaining. Accordingly, the Judge found that the Respondent did not commit an unfair labor practice.

In reaching this conclusion, the Judge distinguished the Authority's decision in United States Department of Labor, 16 FLRA 969 (1984) (DOL). The General Counsel had claimed that DOL established the principle that the issuance of a notice--in DOL, notice of a furlough--is tantamount to implementation of a change in conditions of employment. The Judge found DOL to be factually distinguishable because, among other things, the respondent in that case refused to bargain both before and after the issuance of the furlough notices. In this case, the Judge found that the "Respondent never refused to bargain." Judge's Decision at 10 (emphasis in original).

Although the unfair labor practice complaint did not allege that the Respondent bypassed the exclusive representative by issuing notices to employees, the Judge addressed this issue. He concluded that the fact that the RIF notices were distributed directly to unit employees may not be "used as a basis for an unfair labor practice" where there was no evidence that their issuance involved an attempt to: (1) bypass the exclusive representative; (2) otherwise threaten or promise benefits to employees; or (3) undermine the status of the exclusive representative. Id. at 16.

In sum, the Judge rejected the General Counsel's contentions that the Respondent's issuance of the RIF notices on June 6, 1986, constituted a change in employees' conditions of employment and that the Respondent, therefore, had a duty to bargain before it issued the notices. The Judge concluded that the Respondent did not violate section 7116(a)(1) and (5) "by issuing RIF notices prior to completion of negotiations on the impact and implementation of the reduction in force." Judge's Decision at 16-17.

IV. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel excepts to the Judge's conclusion that the Respondent did not violate section 7116(a)(1) and (5) of the Statute when it issued RIF notices to employees before completing bargaining over the impact and implementation of the RIF. The General Counsel disagrees with the Judge's interpretation of the Authority's decision in DOL and argues that DOL establishes the principle that the issuance of notices of a RIF constitutes implementation of the RIF. The General Counsel notes that the dates referred to by the administrative law judge in DOL as the dates of implementation or effectuation of the furlough are the same as "the dates on which notices were mailed to employees." General Counsel's Brief in Support of Exceptions at 2. The General Counsel also contends that a "primary factor" in the finding of a violation in DOL was the fact that the agency issued notices to employees while the union was requesting to bargain on the matter. Id. at 2-3.

The General Counsel also excepts to the Judge's finding that the Authority's decision in INS supports his conclusion that issuance of RIF notices does not constitute implementation of the RIF. The General Counsel distinguishes INS on the ground that it involved notice to the union of a change in the parties' memorandum of understanding, while this case involved notice to employees of a RIF. The General Counsel contends that the Judge mistakenly considered the RIF notices as a possible bypass of the Union. The General Counsel claims that the basis for finding an unfair labor practice in this case is not a bypass of the Union, but rather the fact that notice to employees of a RIF constitutes "the first step in implementation [of a RIF] and that an agency must complete bargaining before taking this step." Id. at 4.

The General Counsel contends that the Judge erred when he did not find that "if implementation commenced with the issuance of RIF notices, Respondent failed to meet its bargaining obligation." Id. at 4. The General Counsel argues that the Judge should have ruled that "commencement of the implementation is implementation." Id. at 4-5 (emphasis omitted). The General Counsel notes that because RIF notices start the process which inevitably leads to a personnel action, such as a downgrade or reassignment, the form, timing, and content of the notices themselves "are of importance" to the Union because "[o]nce [the notices] are issued the Union has lost its opportunity to negotiate these implementation items." Id. at 5. The General Counsel contends that "as a matter of law, formal notices to employees of a reduction-in-force . . . such as were issued to the Commissary employees in this case, constitute implementation of the action, as implementation is commonly defined under the Statute." Id. According to the General Counsel, it is immaterial that issuance of RIF notices "is only a first step in implementation" and that the Union could have bargained after issuance of the notices. Id. at 6.

B. Respondent's Opposition

The Respondent argues that the Authority should use this decision to "define clearly . . . exactly when the bargaining obligation in a RIF situation does arise." Respondent's Opposition at 7 (emphasis in original, footnote omitted). The Respondent argues that RIF notices define for employees what "the initially identified results" of a RIF action may be; for example, downgrades, reassignments, or separations. Id. at 8. The Respondent claims that only when the RIF notices are issued is the Union entitled to notice and an opportunity to bargain. The Respondent argues that the issuance of a RIF notice does not constitute the implementation of a RIF because "[i]t is only at that point that the changes have been initially identified with sufficient certainty to allow for meaningful bargaining." Id.

The Respondent agrees with the Judge that DOL does not support the General Counsel's arguments. Rather, the Respondent argues that DOL "is best viewed as meaning that the issuance of RIF notices was nothing more than a step toward eventual implementation." Id. at 9. The Respondent also argues that the discussion in DOL about implementation of the furlough action was irrelevant to the finding of a violation in that case, which was premised on the agency's consistent refusal to bargain.

The Respondent also asserts that the Judge correctly applied INS to support his conclusion that the issuance of the RIF notices did not constitute implementation of the RIF. The Respondent contends that INS defines when an agency has satisfied its bargaining obligation prior to implementing an action. The Respondent argues that the Judge's decision is consistent with INS because, as in INS, the Union in this case was given notice and an opportunity to bargain before implementation of an action.

The Respondent argues further that the Judge did not err when he concluded that the issuance of the RIF notices was not the implementation of the RIF. Rather, the Respondent argues that the effective date of the RIF was August 17, 1986, and that it "remained ready and willing to negotiate over proposals to extend that date[.]" Id. at 11.

The Respondent contends that the Union was not deprived of an opportunity to bargain over any matter of importance in connection with the RIF. According to the Respondent, because a RIF situation is ambiguous prior to issuance of the actual notice, "the impact of any proposed RIF involving a group of employees is purely hypothetical." Id. at 11. Moreover, the Respondent argues, even after the issuance of RIF notices "the impact is still only a potential event because the effective date . . . is set in the future." Id.

The Respondent asserts that "the mere ministerial act of issuing a RIF notice did not change working conditions so as to give rise to an obligation to bargain," but that "it is properly seen as the necessary predicate to a ripe bargaining right." Id. at 13. The Respondent argues that because the Judge found that the Respondent was willing to bargain after the duty to bargain "matured," the Judge properly found no violation of the Statute. Id. at 13-14.

V. Analysis

The question in this case is whether the Respondent violated section 7116(a)(1) and (5) of the Statute by issuing RIF notices to bargaining unit employees before completing impact and implementation bargaining with the Union. The Judge found that the Respondent did not violate the Statute. For the following reasons, we disagree.

An agency is obligated to bargain in good faith with the exclusive representative of an appropriate unit of agency employees before implementing a change in the conditions of employment of those employees. Included within that obligation is the duty of each party to bargain over negotiable proposals. See Internal Revenue Service, 29 FLRA 162, 166 (1987). In order to determine whether the issuance of the RIF notices constituted a change in conditions of employment, it is helpful to review the elements of the RIF process.

The commissary employees involved in this case are subject to the provisions of title 5 of the United States Code and the Office of Personnel Management (OPM) regulations which govern a RIF. General Counsel's Exhibit 9. See 5 U.S.C. § 3502, 5 C.F.R. Part 351, Federal Personnel Manual Supplement (FPM Supplement) 351-1 (September 1989). Under those provisions, when an agency decides to conduct a RIF, it must determine the numbers and types of positions to be eliminated and identify the employees who will be affected by the elimination of those positions. The agency makes those determinations by: (1) establishing the competitive area within which it will conduct the RIF; (2) categorizing positions within the competitive area into competitive levels so as to group employees who will compete against one another for retention when positions are abolished; (3) ranking employees within competitive levels according to their relative retention standing; and (4) releasing employees from their competitive level in reverse order of their retention standing, subject to applicable assignment rights. See International Federation of Professional and Technical Engineers, AFL-CIO, NASA Headquarters Professional Association and National Aeronautics and Space Administration, Headquarters, Washington, D.C., 8 FLRA 212, 213-14 (1982) for a more detailed discussion of the RIF process.

Once the agency has made these determinations, the individual employees who will be reassigned, downgraded, or separated from the Federal service as a result of the RIF have been identified. Only after these employees have been identified are specific notices issued to employees informing them that they are subject to a RIF. While a specific RIF notice must contain certain information, the form and content of the notice may vary in different RIF situations. See FPM Supplement 351-1, Subchapter S7-3.

Specific RIF notices inform an employee that "he or she will be . . . affected by a RIF action." Id. The notices inform employees that, pursuant to the application of the RIF procedures: (1) a final determination has been made by the agency as to their RIF status; and (2) they will be subject to the action specified in the notice unless circumstances change before the effectuation date.

The issuance of a specific RIF notice changes the employee's status. An employee who has received a specific RIF notice has been identified for separation, downgrading, or reassignment. By virtue of that RIF status, an employee may be treated differently during the notice period prior to the effective date of the RIF from other employees who have not been identified as subject to a RIF action. For example, FPM Supplement 351-1, Subchapter S7-4 states that when an agency determines during the notice period that there is a lack of work or funds, employees who have received specific RIF notices may be placed on annual leave, in a leave without pay status, or in a nonpay status. Those employees would be affected by such actions before employees who have not received specific notices. Moreover, as in this case, employees who have been issued specific notices must decide during the notice period whether to accept the reassignments or other actions to which they are subject pursuant to those notices.

Because the issuance of specific RIF notices identifies particular employees who will be affected by the RIF, subjects those employees to changes in pay status due to lack of work or funds, and requires employees to make decisions which affect significantly their employment in an agency, we conclude that an agency's issuance of specific RIF notices to employees constitutes a change in the employees' conditions of employment. For the same reasons, the specific notices which were issued to the employees in this case changed their conditions of employment. The employees became subject to actions to which they had not been subject prior to the issuance of the notices. In this case, the employees accepted the actions proposed in the RIF notices and, as a result, were in new positions or had been released prior to the effective date of the RIF. Because the RIF notices implemented a change in the bargaining unit employees' conditions of employment, the Respondent was obligated to notify the Union and fulfill its statutory obligation to bargain before the issuance of those notices.

The Respondent claims that the issuance of specific RIF notices does not constitute a change in conditions of employment because: (1) nothing happens when RIF notices are issued; (2) the impact of a proposed RIF is hypothetical until specific notices are issued; and (3) the issuance of specific RIF notices is a ministerial act. The Respondent argues that an agency's duty to bargain about the impact and implementation of a RIF arises only after the issuance of specific RIF notices to employees. The Respondent contends that in the absence of applicable contractual provisions, bargaining on any negotiable aspects of the determination of an employee's RIF status pursuant to the RIF procedures must take place after that determination has been made.

The Respondent's arguments fail to take into account the fact that specific RIF notices implement an agency's determination concerning each employee's job status. As discussed above, the issuance of the notice to employees communicating that determination, as opposed to the preliminary determination itself, changes employees' conditions of employment.

Some aspects of the RIF process that occur before the issuance of specific notices are negotiable. For example, the determination of the competitive area is negotiable. See American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 88-1901 (D.C. Cir. Dec. 23, 1988). Negotiation over the competitive area for the RIF could mean the difference between an employee retaining his or her position and being notified in a specific RIF notice that he or she has been identified for removal from the Federal service. There is no evidence in the record of this case that the parties have negotiated regarding the competitive area governing RIF actions involving unit employees.

Proposals concerning other aspects of RIFs and their implementation are also negotiable. For example, proposals concerning employees' assignment rights are, in some circumstances, negotiable. See National Treasury Employees Union and Nuclear Regulatory Commission, 31 FLRA 566, 605-09 (1988) (Nuclear Regulatory Commission), enforced in part and enforcement denied in part as to other matters sub nom. United States Nuclear Regulatory Commission v. FLRA, 895 F.2d. 152 (4th Cir. 1990) Indeed, proposals concerning the content of the RIF notice itself are negotiable. See National Treasury Employees Union and Department of the Treasury, Financial Management Service, 29 FLRA 422, 428 (1987) (where employees are covered by OPM RIF regulations, provisions requiring the issuance of RIF notices in accordance with 5 C.F.R. Part 351 are negotiable). See also Nuclear Regulatory Commission, 31 FLRA at 590-92 (where employees are not covered by OPM RIF regulations, proposal concerning RIF notices held to be within the agency's duty to bargain). With respect to the latter point, it would be anomalous, at best, for the Authority to find that although an agency is obligated to bargain over the content of the RIF notice, the agency is not obligated to bargain until after the RIF notice has been issued.

In enacting the Statute, it was "the expectation of Congress that bargaining as required by the Statute would affect the manner in which . . . agency actions are implemented." Federal Aviation Administration, Washington, D.C., 27 FLRA 230, 234 (1987). Consistent with the intent of Congress, we find that bargaining which could affect the determination of an employee's RIF status must take place before that determination is made and implemented by the issuance of a specific RIF notice to the employee. Unless the parties have agreed otherwise, therefore, an agency is required to give notice to a union and an opportunity to bargain before issuing specific RIF notices.

In our view, requiring bargaining over negotiable aspects of the RIF process prior to the issuance of the specific RIF notices is consistent with and effectuates the policies and purposes of the Statute. First, the requirement facilitates the exchange of views and provides an agency with the opportunity to gain important insight into the concerns of its employees' bargaining representative. Accordingly, the requirement "safeguards the public interest, [and] contributes to the effective conduct of public business[.]" 5 U.S.C. § 7101(a)(1)(A) and (B). In addition, requiring bargaining before specific RIF notices are issued would appear to increase the likelihood that bilateral agreement would be reached and, thereby, "facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment[.]" 5 U.S.C. § 7101(a)(1)(C).

Our dissenting colleague notes that RIF notices are subject to change, as a result of bargaining, after they have been issued. We agree. It does not appear to us, however, that the fact that an agency may, or may need to, redo aspects of a RIF as a result of bargaining provides a basis for finding that a bargaining obligation should not attach until after the notices have issued. Indeed, requiring bargaining before the issuance of the specific notices would eliminate the delay and confusion inherent in redoing the notices after bargaining. As such, we believe that the requirement that the parties complete bargaining before the issuance of the specific RIF notices would, in fact, improve the "efficient accomplishment of the operations of the Government." 5 U.S.C. § 7101(a)(2).

In this case, the Union requested bargaining over any change in conditions of employment which resulted from the decision to contract out. As soon as it was informed of the RIF, the Union submitted proposals, requested maintenance of the status quo, indicated that more proposals would be forthcoming, and requested that specific RIF notices not be handed out until after negotiations were completed. Instead of bargaining over the Union's proposals, the Respondent issued specific RIF notices to employees and offered to bargain only when the notice period specified in the RIF notices was in effect.

The Respondent's issuance of specific notices to the affected employees without bargaining on the Union's proposals constituted a unilateral change of employees' conditions of employment in derogation of its duty to bargain under the Statute. See Department of Health and Human Services, Social Security Administration, 26 FLRA 344, 347 (1987) (agency rejection of union proposals and unilateral implementation of proposed study violated section 7116(a)(1) and (5)). We find, therefore, that the Respondent's unilateral implementation of a change in employees' conditions of employment by issuing specific RIF notices without bargaining violated section 7116(a)(1) and (5) of the Statute. Cf. U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 437-38 (1986), in which the Authority concluded that an agency improperly refused to cooperate in impasse procedures by issuing RIF notices to employees while a dispute over the notices was pending before the Federal Service Impasses Panel.

We note, in this regard, our dissenting colleague's apparent reliance on, and definition of, the date on which the RIF is "effective." We believe that the "effective" date of the RIF does not control whether the Respondent was required to bargain with the Union before issuing the specific RIF notices in this case. Under the Statute, an agency is obligated to bargain over "conditions of employment affecting" bargaining unit employees. 5 U.S.C. § 7104(a)(12) (emphasis added). This obligation encompasses bargaining over procedures by which management rights are exercised and appropriate arrangements for employees who are adversely "affected" by the exercise of those rights. 5 U.S.C. § 7106(b)(2) and (3). Nothing in the dictionary or the Statute would lead to the conclusion that an employee is "affected" by a RIF only after the effective date of the RIF.

The Judge's reliance on the Authority's decision in INS is misplaced. In that case, the Authority found that the agency had notified the union of proposed changes in conditions of employment and had offered the union an opportunity to bargain, but that the union had not submitted any proposals other than that the agency should delay its action. The Authority concluded that the agency had satisfied its duty to bargain before implementing the proposed changes because it had initially delayed implementation and did not take action until after the union had failed to respond to its request for substantive proposals.

In this case, the Union requested bargaining over the effect of the Respondent's decision to contract out on the conditions of employment of bargaining unit employees and offered proposals. The Respondent, however, did not respond to any of the Union's proposals, including the proposal to maintain the status quo until completing bargaining prior to the issuance of the specific notices. Instead, the Respondent issued specific RIF notices to employees without affording the Union an opportunity to bargain over the application of the RIF procedures which determined the particular employees to whom those notices would be issued. The Respondent's conduct, in failing to negotiate with the Union prior to issuing the notices, constitutes a failure to fulfill its obligation to bargain with the Union in violation of the Statute.

The Respondent's willingness to bargain with the Union after issuance of the notices and the Union's declination does not cure the violation in this case. After being notified of the Respondent's intention to contract out bargaining unit work, the Union immediately requested bargaining and submitted proposals, including a specific request that the notices not be issued. In view of this specific request, which was repeated several times before the Respondent issued the notices, the Respondent's unilateral action in issuing the notices is inconsistent with its obligations under the Statute. Under these circumstances, the Union's subsequent refusal to bargain with the Agency is not only understandable, but justifiable as well.(2) The Union is under no obligation to continue to bargain with the Agency despite the unfair labor practices committed against it. See United States Information Agency, Voice of America, 33 FLRA 549, 562-63 (1988), remanded as to other matters sub nom. United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990).

The parties' bargaining practices in previous RIFs provide no basis for reaching a different result. It is undisputed that the parties had in the past bargained both before and after the issuance of RIF notices and, in this case, the Union specifically requested that bargaining occur before notices were issued.

As a final matter, we agree with the Judge's conclusion that the interpretation of Article XIV of the parties' collective bargaining agreement is not determinative of whether an unfair labor practice was committed in this case. That portion of the parties' agreement concerns the provision of information to the Union rather than the obligation to bargain prior to the issuance of specific RIF notices.

For the foregoing reasons, we find that the Respondent committed an unfair labor practice under section 7116(a)(1) and (5) of the Statute.

VI. Remedy

The General Counsel requests that the Respondent be ordered "to bargain with the Union concerning the impact and implementation of [the RIF], and to apply retroactively, as appropriate, the results of such bargaining." General Counsel's Brief to the Administrative Law Judge at 7-8. We agree with the General Counsel. Specifically, we find that a backpay award conditioned on the outcome of bargaining is a necessary element to remedy the Respondent's unlawful conduct because no employee would have received a RIF notice, and thus suffered a loss in pay, allowances or differentials, until the Respondent had complied in good faith with its bargaining obligation.

In Federal Aviation Administration, Washington, D.C., 27 FLRA 230 (1987) (FAA II), the Authority established criteria for determining whether backpay remedies are appropriate in cases involving agency refusals to bargain. See also United States Department of Transportation, Federal Aviation Administration, Washington, D.C., 27 FLRA 304 (1987) and Department of Health and Human Services, Social Security Administration, Dallas Region, Dallas, Texas, 32 FLRA 521 (1988). The Authority stated that a backpay award must comply with the Back Pay Act, 5 U.S.C. § 5596, and requires determinations that:

(1) an employee was affected by an unjustified or unwarranted agency personnel action;

(2) the unjustified personnel action resulted in a withdrawal or reduction in pay, allowances, or differentials of the employee; and

(3) the withdrawal or reduction would not have occurred but for the unjustified action.

In FAA II, the Authority noted that the first requirement is met when an agency has committed an unfair labor practice by refusing to bargain. The second requirement is met when the management action which gave rise to the violation resulted in a withdrawal or reduction in the pay, allowances, or differentials of employees. 27 FLRA at 232-33. In FAA II, the Authority also decided that when the first and second requirements are met in a refusal-to-bargain case, an order directing bargaining and the payment of backpay consistent with the outcome of the bargaining satisfies the third requirement: the withdrawal or reduction would not have occurred but for the unjustified action. Id. at 234-35.

In this case, the first requirement was met when the Respondent violated the Statute by issuing the specific RIF notices before it completed its bargaining obligation with the Union. The second requirement was satisfied when the employees who received the notices were separated, downgraded, or subjected to a loss of differentials. Judge's Decision at 5 and 8. Because notices of these personnel actions might not have been issued to the employees who received them, or might not have been issued at the time they were issued, if the Respondent had complied with its bargaining obligation, we conclude that backpay is an appropriate remedy to "make whole" any employee who suffered a withdrawal or reduction in pay or a loss of differentials as a result of the implementation of the RIF. Backpay will be awarded consistent with the outcome of the bargaining ordered below, absent agreement otherwise, to unit employees who suffered a loss in pay, allowances or differentials as a result of the implementation of the RIF.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Air Force, Scott Air Force Base, Illinois, shall:

1. Cease and desist from:

(a) Implementing a reduction-in-force (RIF) concerning bargaining unit employees without first notifying the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of its employees, and fulfilling its obligation to bargain regarding the procedures for implementing the RIF and over appropriate arrangements for employees adversely affected by the RIF.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Bargain with the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of its employees, concerning the procedures for implementing the RIF of certain Commissary employees conducted in 1986, including the exclusive representative's request to maintain the status quo and its request that notices of the RIF should not be issued until bargaining over the proposed RIF was completed, and over appropriate arrangements for employees adversely affected by the RIF, and apply retroactively the results of such bargaining.

(b) Make whole any bargaining unit employee who was adversely affected by the unlawful implementation of the RIF of certain Commissary employees conducted in 1986, including backpay for any bargaining unit employee who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the RIF, to the extent that bargaining in compliance with this Order results in an agreement which would have had the effect of reducing, eliminating, or delaying the adverse effects of the RIF on affected bargaining unit employees.

(c) Post at all places on Scott Air Force Base, Illinois, where bargaining unit employees are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such

forms, they shall be signed by the Commanding Officer and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.



NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS

AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT implement a reduction-in-force (RIF) concerning bargaining unit employees without first notifying the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of our employees, and fulfilling our obligation to bargain regarding the procedures for implementing the RIF and over appropriate arrangements for employees adversely affected by the RIF.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL bargain with the National Association of Government Employees, Local R7-23, SEIU, AFL-CIO, the exclusive representative of our employees, over the procedures for implementing the RIF of certain Commissary employees conducted in 1986, including the exclusive representative's request to maintain the status quo and its request that notices of the RIF should not be issued until bargaining over the RIF was completed, and over appropriate arrangements for employees adversely affected by the RIF, and will apply the results of that bargaining retroactively.

WE WILL make whole any bargaining unit employee who was adversely affected by the implementation of the RIF of certain Commissary employees conducted in 1986, including backpay for any bargaining unit employee who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the RIF, to the extent that bargaining in compliance with the Authority's Order results in an agreement which would have had the effect of reducing, eliminating, or delaying the adverse effects of the RIF on affected bargaining unit employees.

_________________________
(Activity)

Dated:___________ By:______________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provision, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306.



Dissenting Opinion of Member Armendariz

I respectfully dissent from my colleagues' opinion in this case. I agree with the approach taken by the Administrative Law Judge, namely, that the outcome of this case hinges on whether issuance of specific RIF notices to employees constitutes implementation of a RIF. Because I believe that a RIF is not implemented until the effective date of the proposed RIF actions stated in the specific notices, I would find, in agreement with the Judge, that the Respondent did not violate section 7116(a)(1) and (5) of the Statute.

Under the Statute, when an agency decides to change a matter affecting conditions of employment of unit employees, the agency is obligated to bargain with the union representing those employees over the substance and/or impact and implementation of that change and must complete bargaining, including impasse procedures, where necessary, before effecting or implementing the change. See Department of the Air Force, Scott Air Force Base, Illinois, 33 FLRA 532, 544-547 (1988), affirmed sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). Whether a RIF is implemented when specific RIF notices are issued to employees or on the effective date of the RIF as stated in those notices is crucial to determining the point at which an agency risks a violation of the Statute if it has not satisfied its bargaining obligation by completing negotiations with the union over the RIF.

The majority opinion reviews the RIF procedures set forth in the Federal Personnel Manual and concludes that the issuance of the specific RIF notices changes the conditions of employment of unit employees. In my view, the RIF notices do not themselves effectuate any change. The changes set forth in the notices are prospective. They are not final. They become final only on the effective date of the action stated in the RIF notice. As provided in the FPM: "A RIF action may not be taken before the effective date given in the specific notice." FPM Supplement 351-1, Subchapter S7-5. An appeal may be taken from a RIF action only after the effective date of the RIF. FPM Supplement 351-1, Subchapter S8-1.b.

The majority opinion emphasizes the fact that employees must make a decision whether to accept an offer of a reassignment prior to the effective date of the RIF. However, even if employees who accept the offer are reassigned as prescribed in the offer prior to the effective date stated in the notice--which is what happened in this case--those reassignments are not final until the effective date of the RIF action as stated in the notice. For example, if prior to the effective date of the RIF a position becomes available to which an employee would have assignment rights, the agency must offer that position to the employee, even if the employee has already accepted an offer of assignment to a different position. See FPM Supplement 351-1, Subchapter S5-3.e.

The majority opinion also emphasizes that those employees who have been identified as subject to the RIF may be placed on annual leave or in a leave without pay or nonpay status prior to the effective date of the RIF. The fact that some employees may be affected by their RIF status during the notice period does not establish that the issuance of the RIF notices constitutes implementation of the RIF. That effect is entirely speculative. It is equally likely that employees' RIF status will have no effect on them during the notice period, but only on the effective date of the RIF.

Under the RIF procedures established in the FPM, the actions set forth in the specific RIF notices do not become effective until the date stated in the notice. FPM Supplement 351-1, Subchapter S7-5. Inasmuch as those actions are not final until that date, it is my view that the date stated in the notice as the effective date of the RIF is the date on which the RIF is implemented. The dictionary defines the term "effective" as, among other things, "actual, not merely potential or theoretical." Webster's New World Dictionary, Third College Edition. The term connotes the point at which an action becomes "fixed" or "settled," the point at which the action becomes "operative." As noted by the Judge, the term "implement" is defined as meaning "to carry out" or "to accomplish or fulfill"; that is, to put an action into effect, to ensure that the action is fulfilled or brought to fruition.

In terms of the duty to bargain, when an agency "implements" a proposed action, the consequence is that the union may no longer be able to affect that action by negotiations. I agree with the majority opinion that in imposing the duty to bargain on Federal agencies, Congress expected that bargaining would "affect the manner in which . . . agency actions are implemented." Federal Aviation Administration, Washington, D.C., 27 FLRA 230, 234 (1987). However, in my view, because a RIF does not take effect until the date stated in the specific notice, which may occur at a minimum of 30 days after the issuance of the notice, the issuance of the notice does not by itself deprive the union of an opportunity to affect the RIF through bargaining. As indicated above, under FPM regulations, circumstances may occur during the notice period which would affect an employee's RIF status. Nothing in the FPM would preclude bargaining during the notice period on the negotiable aspects of the RIF process from similarly affecting an employee's status.

I conclude, therefore, that the Respondent satisfied its obligation to bargain prior to the effective date of the RIF. The Respondent notified the Union, at the very outset of the decision-making process, that it intended to study the feasibility of contracting out the commissary's custodial and night shelf-stocker functions. The Respondent acknowledged the Union's initial request to bargain over the impact and implementation of the proposed contracting out action and consistently provided the Union with information about that action. It informed the Union that it was seeking Congressional approval to contract out those functions and notified the Union when it had received the necessary approval.

In addition, the Respondent consistently requested information as to the matters about which the Union wanted to negotiate and, prior to the issuance of the specific notices, invited the Union to update its impact and implementation proposals. The Union submitted additional proposals, including a proposal to extend the effective date of the RIF, and the parties agreed on a date for a bargaining session. The Union, however, refused the opportunity to bargain after learning that the specific RIF notices had issued. Even after the Union's refusal to bargain, the Respondent, as found by the Judge, remained ready to negotiate on the Union's proposals.

Moreover, assuming that the Union could have requested negotiations over the competitive areas upon which the specific RIF notices in this case were based, there is simply no indication in this record that the Union submitted a proposal on this matter. In any event, it is undisputed that, as found by the Judge, the parties previously had bargained both before and after the issuance of specific RIF notices. There is no indication in this case that the purposes of the Statute were undermined when bargaining occurred after the issuance of the notices as opposed to before their issuance.

In my view, based on these facts, the Respondent met its obligation to notify the Union of a change in conditions of employment of unit employees and to provide an opportunity for bargaining prior to implementing the RIF. The issuance of the specific RIF notices did not deprive the Union of an opportunity to negotiate on the negotiable aspects of the RIF procedures. Rather, because the notices are not final, they are subject to change through the bargaining process, as appropriate, even after they have been issued. In refusing to bargain with the Respondent after the notices had been issued, the Union passed up an opportunity to affect the conduct of the RIF. Having satisfied its obligation to bargain, the Respondent did not act improperly in implementing the RIF. See U.S. Immigration and Naturalization Service, 24 FLRA 786, 790-91 (1986). See also Division of Military and Naval Affairs, State of New York, Albany, New York, 8 FLRA 307, 320 (1982).

For these reasons, I would find, i